By the Court.—Heard Shri W.H. Khan, learned counsel for the petitioner.

2. Petitioner before this Court is stated to have taken certain financial assistance from State Bank of India. Because of his having failed to return the financial assistance, the bank instituted Civil Suit No.61 of 1991 for realisation of a sum of nearly Rs. 12.00 lacs.

3. The suit against the petitioner was decreed ex parte on 27.5.1994. The petitioner made an application under Order 9 Rule 13 alongwith an application under Section 5 of the Limitation Act on 9.2.1996 for recall of the ex parte decree.

4. In the meantime, Debit Recovery Tribunal was constituted under the Recovery of debt due to Bank, and other Financial Institutions Act, 1992 as a result whereof the suit proceedings alongwith the application for recall of the ex parte decree stood transferred to the Debt Recovery Tribunal at Jabalpur and finally to Allahabad. The Debt Recovery Tribunal vide order dated 13.6.2002 rejected the application for recall of ex parte decree.

5. Not being satisfied, the petitioner filed First Appeal No.R-187 of 2002 before the Debt Recovery Appellate Tribunal, Allahabad. The appeal was rejected vide order dated 3.11.2004. Not being satisfied, the petitioner filed writ petition No.50209 of 2004 wherein an interim order was granted on 29.11.2004 which provided that on deposit of 25% of the total amount due as on date with reference to the ex parte judgment and decree alongwith interest within two months, the recovery proceedings against the petitioner shall remain stayed.

6. The records reflect that the petitioner failed to avail the benefits of the interim order so granted in his favour. The bank accordingly, proceeded for execution of the ex parte judgment and decree.

7. The property of the petitioner had been attached under an order dated 22.4.2002. This property was put to auction and sale proclamation was issued on 27.5.2002. The petitioner objected to the fixation of the reserve price. It is his case that without considering the said objections of the petitioner, the property was sold on 28.4.2009 for a sum of Rs. 9,55,000/-, after the reserve price was shown as Rs. 9.00 lacs only.

8. The petitioner in order to challenge the auction proceedings made an application under Rule 61 of the Second Schedule of the Income Tax Act, 1961. Since the application was not being entertained because of the non-compliance of proviso (b) to Rule 61, the petitioner has come up before this Court by means of the present writ petition with the following prayer :

“(i) issue a writ, order or direction in the nature of mandamus declaring proviso (b) to Rule 61 of the second schedule to Income Tax Act 1961 as ultra vires and commanding the respondents not to give effect to the said provision;

(ii) issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 29.5.2009 (Annexure-10) passed by respondent No. 1;

(iii) issue a writ, order or direction in the nature of mandamus commanding the for mandamus commanding the respondent No. 1 to entertain and decide the application /objection of the petitioners under Rule 61 of the second proviso to Income Tax Act 1961 on merits;

(iv) issue a writ, order or direction in the nature of certiorari quashing the auction sale dated 28.4.2009.”

9. So far as the first prayer made by the petitioner for the purpose of challenging the vires of proviso (b) to Rule 61 of the Second Schedule of the Income Tax Act, 1961 is concerned, counsel for the petitioner Shri W.H. Khan contended before us that the condition of deposit of the entire amount mentioned in the certificate as a condition precedent for entertaining the application, raising objection to the auction sale is arbitrary as it imposes harsh condition and makes the remedy illusory.

10. It is submitted that the condition provided for under proviso (b) to Rule 61 is hit by Article 14 of the Constitution of India, being oppressive in nature.

11. Counsel for the pe